General Prosecutor, the Supreme Leader of the Slovak Republic?
On 31 August 2021, General Prosecutor of the Slovak Republic (GP) Maroš Žilinka invoked Article 363 of the Code of Criminal Procedure to annul charges against former director of the Slovak Secret Service (SIS) and four other high-profile individuals held in custody due to corruption allegations.
What makes this action newsworthy is its context. The legality of the criminal charges was previously upheld several times by three different courts, including the Supreme Court and the Constitutional Court. The annulled charges were not brought by the GP but by the Special Prosecutor (SP) who has jurisdiction over corruption cases. Last but certainly not least, the GP was nominated by the same party (Sme rodina-ID) as the indicted former SIS director who also happens to be a brother and husband of two of the party’s MPs. The GP made use of the special remedy to annul the charges just days before the expiry of this option.
One power to rule them all
Article 363(1) of the Code of Criminal Procedure empowers the GP to annul police and prosecutorial decisions if it was illegal. The annulment must take place within six months of the disputed decision being taken. Crucially, there is no remedy against the GP’s annulment.
Article 363 was considered controversial already before the current GP used it to free corruption suspects in questionable circumstances. The government committed itself to explore narrowing down this provision in April 2020. The NGO Via Iuris recommended to MPs to ask GP candidates in November 2020 about their position on the use of Article 363. Unfortunately, Mr Žilinka was not asked about this provision during the public hearings. He did say, however, that he “strictly separates the personal and the professional” and that he is ready to tackle the “culture of safety and cosiness” that existed in the prosecution ranks in the past.
Whatever merits one can find in a provision like Article 363 – safeguard against rogue policemen and prosecutors? – it is difficult to find justification for invoking it after more than ten different judges across three different courts came to the conclusion that the criminal charges were legal. The GP and his powers under Article 363 – valid until 11 September – were at this point the only hope of the former SIS director (personally connected to a governing party) being released before possibly ending up sentenced for years in prison for taking a bribe.
The GP’s decision comes on the back of a broader campaign by Sme rodina to achieve the release of their former nominee, including by questioning and discrediting various actions of the police and the prosecution. It is impossible to avoid the impression that the GP’s use of Article 363 was a measure of last resort to free a man with unusually strong personal connections to the party that most strongly backed Žilinka for his post.
The rule of prosecutors
For all the wrong reasons, general and special prosecutors have been key figures in Slovak politics for over a decade. The former SP, Dušan Kováčik, was essential in successfully shielding governments led by SMER-SD (S&D) from corruption inquiries in the past. He is currently in jail on corruption charges. Former GP Trnka gained infamy for his embarrassing relationship with Marián Kočner, the alleged client behind the murder of Ján Kuciak and his fiancée. He is also currently awaiting trial. The only recent former GP/SP without an indictment hanging over him is Jaromír Čižnár who became GP following the unconstitutional refusal by former President Gašparovič to appoint another candidate in 2011-2012. Čižnár was “classmate and friend” of former PM Fico.
So the news about the apparent pliability of the sitting GP confirms Slovakia’s bad luck with prosecutors. Except that it is not bad luck at all – many Slovak politicians have clearly become accustomed to the GP/SP serving as a crucial line of defence against undesired effects of the justice system. The 7-year term conferred on the GP in a secret vote by MPs is meant to enhance his or her independence. In practice, the length of the term and near irremovability has more often than not protected the GP from accountability for their actions, while increasing the value of the GP “spoils” in backroom bargaining among political parties.
Dear colleague,
as a fellow academic, I acknowledge that sometimes it is due to concerns of time that we all happen to cite or rely on information that seems to come from a legitimate source without scrutinizing it carefully. I, however, believe that in this case, you happen to have fallen for the rhetoric of the Special Prosecutor – I do not want to contest his work as a lawyer, but bear in mind that this person has had an active career in partisan politics for years, and it might be very well out of habit that he still frequently approaches matters as a politician – by which I mean that even if there is a grain of truth in their argument, it usually gets rhetorically blown out of proportion and context. In this particular case, I believe, the devil is in the details – and there are many problems here. In particular, I would insist that you are reproducing the “political” tendency of mixing up particular legal material (laws, rules, obligations, their system) for the actual legal personae.
Let me exemplify this – while it is true that the GP Žilinka was nominated for his function by the Sme Rodina party, you seem to be not aware that he was a non-partisan choice of the national advocates’ association and that the partisan politics step here only to the extent that it was a Sme Rodina MP that took this recommendation and presented it to the Parliament, which is also supported by the fact that if it were a ‘partisan’ candidate, he wouldn’t have received votes from both coalition and opposition parties.
Second, Žilinka, being actually a professional, in fact personally stepped down from the case of the director of SIS (Pčolinský), due to potential conflict of interests and Pčolinský’s family ties to the Sme Rodina politicians. The case was handled by a different lawyer from the GP’s office.
Next, you write about the Article 363. If I interpret it correctly, the law makes it in fact mandatory for the GP to act if the injured party made an appeal. Therefore, GP must act if there are objective reasons for action, such as overturning of the decision of the lower instances; GP cannot wantonly refuse to act and let court handle the matters in such case. (Also, the police and courts can initiate new incarceration of the released persons any moment when new evidence is presented). What I intend to say here is that the GP office in fact didn’t act politically in this case, in particular because it was ordered by law to act the way it did. I reckon that in our small, nepotistic country, where everyone knows everyone and everyone has business with everyone else, one might habitually assume that if a particular action involving “shady” business elites or politicians takes place, there is political motivation behind such action. In most cases this intuition is right, but I believe that the error in this case is, that in light of the details it does not appear at all that the GP would have acted either on a whim or from political motivation – in fact, while I am not in the position to say if Pčolinský was guilty or not of the actions he was indicted for, or whether he is a good or bad guy, according to the available materials appears that in fact the accusations might have been made up by other suspects held in custody as a way of easing up their sentences and by causing trouble to someone they might dislike. We are then faced with the possibility of a person being held in custody on wrongful accusation, which, in a legal system with human rights is a thing that should be prevented first and foremost, even if it gets more difficult to get all the corrupt elites their due.
However, as long as I have indicated, the small facts indicate something else going on, I wonder in whose interest it might be to actually turn administrative and procedural acts by the GP into partisan matters and why.
Respectfully,
Lukas Makovicky
Great post Michal! Thank you for writing about this worrying development. Just to add a minor nuance. It seems that Žilinka had criticised the use of Article 363 of the Code of Criminal Procedure when he was asked a general question about legal reforms during the selection hearing. See the following article> https://dennikn.sk/2526754/zilinka-ako-kandidat-na-vypocuti-poslancom-paragraf-363-robi-nam-to-na-urade-len-sarapatu/
Kr, Simon
great point, I missed it while listening to the hearings